The week of October 2, 2017, was again not noteworthy in Minnesota published case law. Which, I know comes as a major disappointment to the public at large. There was an unpublished case where a guy pretended to be a sex therapist counseled a person addicted to sex. This may come as a surprise to many but they had sex. When he got charged with third-degree crim sex because of the sensitive nature of the professional/client relationship, said he was just pretending to be a professional. He lost his argument and I feel like you get the gist of the case, so we will move onto ineffective assistance of counsel, or otherwise known as when lawyers suck. This case is called, State v. Berhens Jr., (A17-0499).
He was on probation for a second-degree crim sex case for 25 years. He was supposed to complete sex offender treatment, chemical dependency counseling, individual counseling, not get online without probation approval. He has a probation-violation hearing regarding his use of devices that can get onto the internet. The court dismissed the violation but the court amended the conditions of probation to include no internet access and no possession of internet-capable devices without agent approval. There was another hearing in which he admitted buying a phone capable of accessing the internet. As a consequence, the court ordered him to serve 120 days in jail.
After serving his jail time, he again got violated for the internet (must be a blog reader) drinking, possessing five cell phones and failing to complete chemical dependency treatment. Behrens testified that he had issues with drugs and alcohol. He didn’t show up for the treatment intake because of work. He used the internet to obtain college transcripts and said the five phones were not in service. Like collecting old Motorola Razrs. The State argued that the violations were proved by clear and convincing evidence and Berhen’s attorney said this:
“I don’t know what to say for this man, Your Honor. He has been on probation a few years now. He probably should be farther along with things. I think given his disability and mental illness and untreated chemical addiction problems I don’t think he is capable of being successful on probation. Every time I have talked with him in the past week or so since I have gotten this case he has been talking about going to treatment and wanting help for his alcohol problem and drug problem because he thinks that is sort of the overarching issue, but I know he wants to try one more time on probation, and that is what he is asking for, Your Honor.”
Once the court found the violations were proved, the State asked that he go to prison for 36 months. The state argued that it would depreciate the seriousness of those violations if the court did not revoke probation and execute the 36-month sentence. Behrens’ attorney was asked to address sanctions and responded with, “Nothing further to say, Your Honor.” The court sent him to prison for 36 months. Behrens appealed for ineffective assistance of counsel.
A defendant has a statutory right to the assistance of counsel in a probation- revocation proceeding. Minn. Stat. §§ 611.14(3); 609.14, subd. 2 (2016). The parties have analyzed the issue under the Sixth Amendment. When evaluating claims of ineffective assistance of counsel under the Sixth Amendment, we employ the Strickland test, which has two prongs: deficiency of representation and prejudice to the defendant. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999). The defendant must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).
Behrens argues that his counsel’s representation was unreasonable because counsel conceded that Behrens violated probation and that he could not be successful on probation. According to Behrens, “[n]o reasonably competent attorney would do such a thing.” The State did not argue with that. Without being at the hearing or reading the transcript it is impossible to know how the evidence came in. That being said, the State needs to prove by clear and convincing evidence that the person intentionally violated probation. The probationer can argue mitigation to the court as well, such as I had 5 cell phones because the 4 previous ones I had got cracked screens.
What the State argued is this, that there is no reasonable probability that the result of the proceeding would have been different, considering Behrens’ detailed history of probation violations and lack of meaningful progress while on probation. So Behren’s could have had Johnny Cochran exhumed from the grave and the result would have been the same. Prison.
Behrens relies on Dukes v. State, where the supreme court acknowledged that “there are some Sixth Amendment right to counsel violations in which prejudice to the defendant will be presumed.” 621 N.W.2d 246, 254 (Minn. 2001) (citing Strickland 466 U.S. at 692, 104 S. Ct. 2052). In Dukes, the supreme court identified the situation “where counsel admits guilt without the consent of the defendant” as a situation in which the defendant would be “entitled to a new trial, regardless of whether he would have been convicted without the admission.” Id. at 254 (citing State v. Wiplinger, 343 N.W.2d 858, 861 (Minn. 1984). So you can’t say, “yeah you are right, my client sucks. He did it.” This happened here but I think the court also could have focused on the complete lack of disposition arguments. Disposition is the punishment. You get to argue Austin, that the policies in favor of probation are not outweighed by the need for incarceration. You can Motland, which talks about a need to protect public safety, or a need for correctional treatment, or that the seriousness of the violation unduly depreciates the seriousness of the violation. Which sounds like something a headmaster says before you get kicked out of an English boarding school. Something. The client is related to Kim Jong Ill, and is named Menta Lee Ill. Give the court something but here we got nothing. And Mr. Behrens gets another bite at the apple.
